IMPORTANT POINTS
The period spent on consolidated pay would not enure to the benefit of the teacher as qualifying service would not detract from the position that the seniority has to be assigned from the date of commencement of approved teaching experience as spoken of in Chapter XXXII; when the date of appointment as HSST (Junior) & HSST are identical. Yet again, we notice that the learned single Judge has arrived at the said decision, which definitely is a reasonable way of looking at the seniority issue, especially in the absence of a specific rule in Chapter XXXII.

JUDGMENT :

K.Vinod Chandran, J.

The appellants are two teachers, who claimed seniority over the 1st respondent. The learned counsel for the appellants submits that the judgment impugned in W.A.No.1603 of 2017 specifically looks at the observations in the earlier judgment and also finds that the 2nd respondent has attempted to overrule the judgment passed earlier. We hence consider both the Appeals together since the issue is identical.

2. The 1st respondent herein and the appellants, who were respondents 4 and 5 in the Writ Petitions, were appointed respectively on 04.09.1991, 09.09.1991 and 23.09.1991 on consolidated pay. They continued uninterruptedly till 07.04.1992, on which date they were made Higher Secondary School Teacher (Junior). Again they continued in that post till 15.7.1992, on which date they became Higher Secondary School Teachers (HSST). The bone of contention between them is as to seniority in the cadre of HSST. The Regional Deputy Director (RDD) found that it has to be fixed on the basis of age. The respondents 4 and 5 being older, they were assigned seniority at 1 and 2 positions while the writ petitioner was assigned seniority at position No.3. The RDD relied on Rule 37 of Chapter XIVA, which speaks of determining the seniority on the basis of age, when the appointment date is identical.

3. The learned counsel for the appellants has two contentions against the judgment; one is that the service spent on consolidated pay is not qualifying service and hence there can be no seniority determined on the basis of the first appointment, on consolidated pay. Further contention is that the service of the petitioner between 04.9.1991 to 07.4.1992 was on consolidated pay, not reckoned for qualifying service and if the petitioner had a different claim, it should have been challenged at that point. For the first time, the challenge was made only in the year 2016. The Manager supports the appellants and seeks to uphold seniority as determined by him, which stands approved by the RDD. The appellants rely on the judgment of a Division Bench of this Court in Nanminda Higher Secondary School v. Director of Higher Secondary Education [2015 (3) KLT 307]. For advancing the ground of the writ petitioner being estopped from raising a stale claim on the principles of theory of sit back, the appellants rely on Pavithran v. State of Kerala [2009 (4) KLT 20 (F.B.)]. The learned Government Pleader refers to Rule 7 of Chapter XXXII to contend that probation commences only from the date of first appointment as an HSST(Junior) and the appointment on consolidated pay cannot be reckoned at all.

4. The learned counsel for the respondents counters that for promotion under Rule 6, what is required is approved teaching experience, though not specifically in the post of HSST. Chapter XXXII speaks of approved teaching experience, for the purpose of reckoning qualification for the purpose of promotion which necessarily has to commence from the date of first appointment, whether it be on consolidated pay or otherwise, which period admittedly has been approved by the educational authority. The learned counsel would also rely on the judgment of this Court in Ramesan v. Manoj Kumar K. and Others [2019 (3) KHC 942 (D.B.)], wherein it was specifically found that Rule 37 under Chapter XIVA has no application to Chapter XXXII.

5. We have to first notice that Chapter XIVA has no application to Chapter XXXII as already found by us. As pointed out by the learned counsel for the respondent, in Ramesan, we specifically found the absence of a suitable rule in Chapter XXXII for the purpose of fixing the seniority of the HSST appointed to a school, especially when they are appointed on direct recruitment. As against the promotees or by transfer appointees, we found that it has to be on the basis of the first arising vacancy with the promotees being assigned the positions at 1, 5, 9 and so on and so forth, the ratio being 1:3. There is an absence of a rule prescribing